46 Mass. App. Ct. 38 | Mass. App. Ct. | 1998
After a jury in the Superior Court convicted the defendant of the crimes of aggravated rape, rape, and three counts of assault by means of a dangerous weapon, the defendant filed this appeal. He claims his convictions should be reversed because the trial judge erroneously precluded his expert witness from testifying and gave defective instructions to the jury on the crimes of aggravated rape and assault by means of a dangerous weapon. The defendant also claims it was error for
We summarize briefly the pertinent evidence at trial. The complainant testified that on August 28, 1994, after completing her work as an exotic dancer at a club owned by the defendant, the defendant forced her to submit to vaginal intercourse at gun-point and that, after doing so, he inserted a gun barrel into her vagina while verbally threatening her. The complainant could not remember if the defendant had ejaculated during the penile intercourse. Following these events, the complainant left the club and in her anger created a disturbance outside the club which was witnessed by two of her friends who had been waiting for her to leave. During the disturbance, the defendant threatened the two friends with a gun, resulting in their departing without the complainant. After the complainant’s friends left, the defendant shoved a gun in her side in an attempt to get her back into the club. However, she managed to get away and sought help from some strangers. At about this time, the police arrived on the scene and, after taking her statement, brought her to the Holyoke Hospital for an examination and the collection of a rape kit.
The rape kit and a gun seized from the defendant at the time of arrest were submitted for analysis to the State police laboratory. The chemist from the laboratory testified that he detected sperm on the vaginal slides in the rape kit submitted to him and live epithelial cells on the gun. He testified that motile sperm can be detected only within forty-eight hours of intercourse and immotile sperm may be detected anywhere from two days up to two weeks after intercourse. A questionnaire completed by the complainant as part of the rape kit contained information that the complainant had not engaged in consensual intercourse within five days of her examination at the hospital. The chemist also testified that epithelial cells found on the gun could have originated only from a body orifice such as the vagina, mouth, or anus.
The defendant took the stand on his own behalf. He denied
At the outset, we address the issue of the trial judge’s imposition of a preclusive sanction, which is dispositive of this appeal. When the Commonwealth rested, defense counsel informed the court that his first witness would be a physician who would testify that he performed a vasectomy on the defendant in 1986; that following the operation, the defendant was tested to determine if he was capable of producing sperm; and that the test results indicated that he could not. The prosecutor objected to defense counsel calling this witness on the grounds that defense counsel did not disclose this witness to him until the morning the trial was to begin, in violation of the pretrial conference report, and that, because of the untimely disclosure, he lacked adequate time to prepare for the examination of the witness and possible rebuttal. Defense counsel argued that the results of the rape kit had not been given to him until ten days before trial
The Supreme Judicial Court has laid out five factors which must be taken into account in assessing such a balance. Commonwealth v. Chappee, 397 Mass, at 518. They include (1) prevention of surprise; (2) evidence of bad faith in the violation of the conference report; (3) prejudice to the other party caused by the testimony; (4) the effectiveness of less severe sanctions; and (5) the materiality of the testimony to the outcome of the case. Commonwealth v. Durning, 406 Mass, at 496. Here, the judge considered four of the five factors — surprise, prejudice, materiality, and bad faith. He found that the surprise and prejudice to the prosecution outweighed the materiality and lack of bad faith on the part of the defense and barred the witness from testifying. Although we recognize considerable deference should be given to the trial judge’s exercise of discretion in these matters, we conclude that the sanction employed was not justified in light of his findings and the circumstances of this case.
Here, the prosecution was made aware of the witness and the subject of his testimony on the first day of trial prior to impanelment. The prosecutor raised no objection at that time and did not request the court to take any action to cure any prejudice to him. Instead, he allowed the defendant to place the name of the
As there was error, and a constitutional right is implicated, the convictions for rape, aggravated rape, and one count of assault by means of a dangerous weapon which hinged on the complainant’s credibility cannot stand unless the error is harmless beyond a reasonable doubt. See Commonwealth v. Caldwell, 45 Mass. App. Ct. 42, 46 (1998). The case essentially presented a duel of credibility between the complainant and the defendant. Without this testimony, the jury was left without evidence to corroborate the defendant’s testimony that he had a vasectomy and the test results of that procedure,
Because of the result we reach, we discuss only those claims
However, we do agree with the defendant that the judge misspoke when he instructed the jury as follows:
“However, I will instruct you that if the defendant is found guilty of aggravated rape, whether on one ground or the other, natural or unnatural, by necessity, he would have to be found guilty of assault by means of a dangerous weapon insofar as you are, well, you have to be by necessity, he have [sic] to be found guilty by assault by means of a dangerous weapon as I defined, he would have to be found guilty of aggravated rape.”
When these instructions are placed in proper context and the judge’s instructions are viewed as a whole, it is obvious that these instructions refer to the determination of the underlying felony that constitutes the aggravating element of the crime of aggravated rape by natural or unnatural intercourse and not the three counts of assault by means of a dangerous weapon. We note that this misstatement was preceded by the judge’s very detailed instructions on each of the crimes and that the judge specifically drew the jury’s attention to the fact that with respect to the complainant there were two incidents that formed the basis for a charge of assault by means of a dangerous weapon,
Although we observe that the judge should have included assault by means of a dangerous weapon as a lesser included offense on the aggravated rape verdict slips, we do not conclude that the judge’s misstatement deprived the defendant of his right to have each charge alleged against him weighed separately or relieved the Commonwealth of its burden to prove each crime beyond a reasonable doubt.
In sum, we reverse the convictions of rape, aggravated rape, and one count of assault by means of a dangerous weapon in which the complainant is named as the victim. The other two counts of assault by means of a dangerous weapon (94-2360 and 94-2361) are affirmed.
So ordered.
The prosecution informed the court that the test results were made available to defense counsel one month prior to trial and that defense counsel failed to pick them up.
In his memorandum of decision denying the motion for a new trial, the judge found that in addition to the unfair surprise and prejudice to the Commonwealth, the testimony was not material to the jury’s determination of the charges.
In denying the motion for a new trial, the judge found that defense counsel was dilatory in preparation but did not act wilfully.
The judge afforded the defense counsel the opportunity to present the 1986 test results in evidence; defense counsel did not do so.